On August 29, 2013, Governor Chris Christie signed a bill that prohibits most employers from requiring employees or prospective employees to disclose user names and passwords for social networking accounts like Facebook, Twitter and LinkedIn. The new law, which goes into effect December 1, 2013, makes New Jersey the 13th state to enact legislation protecting the social networking accounts of employees. The Gibbons Employment Law Alert previously covered the proposed bill before it became law.
A New Jersey Federal Court Holds that the Stored Communications Act Applies to “Wall Posts” on Facebook
The Federal Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”), makes it unlawful to, among other things, “intentionally access without authorization a facility through which an electronic communication service is provided.” Violators are subject to imprisonment and fines, and the statute expressly authorizes a civil action for damages, injunctive relief and attorneys fees. A federal court in New Jersey has now held that the statute may apply to those who access information posted by a Facebook account holder on his or her Facebook “wall.” The defendant-employer in the case, Monmouth-Ocean Hospital Service Corp. (“MONOC”), was able to avoid liability under the SCA because the plaintiff could not establish that her employer violated the “without authorization” component of the statute. Ehling v. Monmouth-Ocean Hospital Service Corp. But the case puts employers on notice that they must tread carefully in this area.
On Monday, May 5, 2013, New Jersey Governor Chris Christie issued a conditional veto of Assembly Bill No. 2878, the controversial piece of proposed legislation that sought to bar most employers from requiring current or prospective employees to provide user names or passwords to social networking accounts and from inquiring as to whether current or prospective employees even had social networking accounts.
The federal government continues to take aim at those who violate trade secrets rights. On December 28, 2012, the Theft of Trade Secrets Clarification Act of 2012 (S. 3642) became law, expanding the definition of trade secrets under the Economic Espionage Act (EEA). In addition, as previously reported in a Gibbons IP Law Alert blog, the President is expected to sign legislation recently passed by Congress that triples the damages for a violation of trade secrets protection laws and provides technical changes to patent applications and protections. Also worthy of note is an 82-page report from the U.S. Department of Justice issued last month detailing federal enforcement efforts concerning trade secrets theft.
Taking Over Former Employee’s LinkedIn Account Not a Violation of Federal Law, According to Pennsylvania District Court
A Pennsylvania Federal District Court has decided that an employer did not violate the Federal Computer Fraud and Abuse Act (“CFAA”) or the Federal Lanham Act, when it took control of a departed employee’s LinkedIn account. The Court ruled that (1) the CFAA, which in part prohibits unauthorized access to a computer with the intent to defraud, did not come into play and (2) no trademark infringement in violation of the Lanham Act had occurred.
Recent New Jersey Law Division Decision Highlights Importance of Making Government Records Requests Under Both OPRA and the Common Law
The right of public access to information about sexual harassment claims brought against a public entity is the focus of a recent decision of the Superior Court of New Jersey, Law Division (Atlantic County). The decision illustrates the interplay between the common law right of access to government records and the New Jersey Open Public Records Act (“OPRA”), as well as the importance of making a request for a government record under both.
In this technology age, employees increasingly make personal use of workplace electronic communications applications. The legal ramifications of such personal use – and how employers can create policies that balance the right to monitor the workplace with employees’ expectations of privacy – were examined in an informative panel discussion, “Electronic Communications Policies in the Wake of Stengart and Quon” during Gibbons P.C.’s Fourth Annual E-Discovery Conference on October 28, 2010.